In Mississippi, both parents have equal rights to the child(ren) unless otherwise determined by the Court. So, when the issue of child custody arises the Court must decide what is in the best interest of the child(ren) in accordance with Miss. Code Ann. Sec. 93-5-24. To determine what is the “best interest” of a child the Albright Factors are considered. Albright is the case that set precedent in Mississippi family law when it comes to child custody. (Albright v. Albright, 437 So. 2d 1003 (Miss. 1983)). The following factors are considered the Albright Factors and are used when Child Custody is addressed:
- the age, health, and sex of the child;
- the continuity of care prior to the separation;
- the parenting skills;
- each parent’s willingness and capacity to provide primary child care;
- each parent’s employment and responsibilities of that employment;
- each parent’s age and physical and mental health;
- emotional ties between the parent and child;
- moral fitness of the parents;
- the child’s ties to home, school, and community;
- the child’s preference, if the child is of a sufficient age to express a mature preference (usually 12 in MS);
- each parent’s relative financial situation;
- difference in parents’ religious beliefs or non beliefs;
- difference in parents’ personal values and lifestyle;
- the stability of each parent’s home environment; and
- any other factors the court believes are relevant to the parent-child relationship.
This isn’t a magical or mathematical formula, however. Just because 6 factors favor one parent and 5 favor the other parent, this does not mean that custody will be awarded to the parent who had 6 factors in his/her favor. Each factor may carry different weight and the outcome will depend on what is in the child(ren)’s best interest.
Some years ago, a mother was presumed to be a better care giver and the “Tender Years” doctrine was born. However, more recently, it has been held that both parents should be presumed equal under Mississippi Code Ann. Sec. 93-5-24(7) “[t]here shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody”. This statute removes any legal presumption that a mother should have custody unless she is proven unfit. Therefore, it has be held that “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So. 2d 304, 307 (Miss. 1998).
If you are facing a custody suit, it is critical that you retain an attorney who will aggressively protect your rights. I zealously represent my client’s rights to custody and guide him/her through the minefield of child custody battles and explain his/her rights, obligations, and option and what will work best in his/her situation, because no two cases are the same. Should you need legal representation in child custody, support, modification, contempt or other family law matters, please contact my office at 601-483-4144 or via email at stella@stellahurttlaw.com.